Opinion Writing on the Roberts Court

Liptak has an interesting piece on opinion-writing on the Roberts Court, and in particular the debate within the Court about whether they should be using the relatively tiny number of appeals they accept to be setting clear rules:

In June, the Supreme Court issued a decision on the privacy rights of a police officer whose sexually explicit text messages had been reviewed by his employer. Ever since, lower court judges have struggled to figure out what the decision means.

The case “touches issues of far-reaching significance,” Justice Anthony M. Kennedy wrote. Then he explained why the court would decide none of them. A definitive ruling should be avoided, he said, because “it might have implications for future cases that cannot be predicted.”

Justice Antonin Scalia went along with the decision, but he blasted his colleagues for “issuing opaque opinions.”

A month later, Judge Frank M. Hull of the federal appeals court in Atlanta complained that the privacy decision featured “a marked lack of clarity,” and was almost aggressively unhelpful to judges and lawyers.

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.

And it increasingly does so at enormous length

One aspect of “minimalism” the article correctly emphasizes is that while its proponents tend to emphasize the discretion it leaves to legislatures, in many cases it just transfers discretion (for better or worse) to lower courts.

The article also discusses some new academic research, most of which has unsurprising results (for example, majority opinions — which need to hold votes from justices with potentially divergent opinions — are longer and less clear than dissents). One thing that I did find amazing, from a chart in the dead tree edition, is that McDonald v. Chicago is one of the ten longest opinions in the Court’s history. Given that the Court had already addressed the (difficult and important) 2nd Amendment issue the previous year and were just dealing with the relatively straightforward incorporation question — and resisted suggestions to do anything innovative — that’s very odd. I’m not sure to what extent it really matters, but increasingly prolix opinions are one clear effect of delegating opinion-writing to clerks, which seems to bother a lot of Court observers and scholars for reasons I don’t really understand.

…see also.